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IN THE HIGH COURT IN MALAYA AT IPOH

IN THE STATE OF PERAK DARUL RIDZUAN
[DIVORCE PETITION NO: AA-33-229-06/2018]
[APPLICATION TO IMPLEMENT NO: AA-24NCVC-72-02/2022]

BETWEEN

LEE LAI HOON

(NRIC NO. : 800927-08-5800) … APPLICANT

AND

ENG PING YEAN

(NRIC NO. : 790724-08-5791) … RESPONDENT

JUDGMENT

Introduction

[1] On 9 June 2022, this Court allowed the Applicant’s Originating

Summons for the issuance of a Writ of Possession against her
former husband, the Respondent, for possession No. 1D-20-05,
Sunny Ville Condominium, Jalan Batu Uban, 11700 Gelugor,
Pulau Pinang (hereinafter called “the said Apartment”) and
authorising the Court’s Bailiff to use such force as may be
necessary to obtain possession. Dissatisfied, by notice of appeal
dated 23 June 2022 (Enclosure 11) the Respondent appealed and
this is the grounds of judgment.

Background Facts

[2] The said Apartment was the former matrimonial home of the
Applicant and the Respondent.

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[3] Upon the petition of the Applicant for the dissolution of their
marriage in the High Court in Malaya at Ipoh Divorce Petition
No. AA-33-229-06/2018, a Decree Nisi dated 13 August 2018
was obtained wherein it was ordered by Che Mohd Ruzima Bin
Ghazali J (now JCA) in summary that:

a) the marriage is to be dissolved unless reasonable cause to

the contrary was provided to the Court within three months
on why it should not be made absolute;

b) the Respondent has to refund the Applicant a sum of

RM40,194.83 which was the amount paid by the Applicant
for the purchase of the said Apartment within seven (7)
days from the date of the Decree Nisi;

c) within three months of the Decree Nisi, the Respondent

has to ensure that the name of the Applicant is removed or
discharged from the loan taken from Hong Leong Bank
Berhad (“the Bank”) with the said Apartment having been
charged to the Bank and the Respondent has to:

i) settle the balance of the loan due and or obtain a loan

to redeem and or to refinance the said Apartment
with the Applicant to transfer all her share in the said
Apartment to the Respondent with all expenses and
or transfer costs including but not limited to legal
fees, stamp duty, disbursements to be paid by the
Respondent. In the interim, the Respondent has to
continue to pay the balance of the loan to the Bank
and the maintenance charges and expenses of the said
Apartment;

ii) if the Respondent were to breach, fail, neglect within

the three months to settle the balance of the loan
owing and or secure refinancing in his own name, the

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said Apartment has to be sold at a market price to be

valued by a registered valuer to be appointed by the
Applicant and after deducting the balance owing to
the Bank, the costs and or expenses for the sale
transaction and if there is any profit from the sale,
the profit is to be shared equally between the
Applicant and the Respondent;

iii) in the event the Respondent were to fail to execute

any documents in connection with the sale of the said
Apartment, the Deputy Registrar of the High Court at
Ipoh is authorised to execute any forms or documents
on behalf of the Respondent for purposes of
facilitating the transfer of the said Apartment and the
Land Office and any other authority has to give
effect to the same;

iv) in the event the Respondent were to default in paying

any monthly instalments and the said Apartment is to
be auctioned by the bank, the net proceeds from the
sale of the said Apartment is to be paid to the
Applicant from the sale proceeds, if any, or if the
sale proceeds from the auction is insufficient to settle
the balance of the loan owing to the bank, the
Respondent is to be responsible to pay the same.

[4] As it turned out, the Respondent failed and refused to comply

with the terms which I have paraphrased in paragraphs (b) and
(c) of the Decree Nisi above.

[5] In 2019, the Applicant appointed a registered valuer from M/s

Rahim & Co. International Sdn. Bhd. to value the said
Apartment. Notice was given to the Respondent to cooperate by
allowing the valuer to enter the said Apartment to view the
same, take photographs and to put a valuation report.

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[6] The Respondent did allow the appointed valuer to enter the said
Apartment to carry out the assignment and the said Apartment
was valued at RM480,000.00.

[7] Thereafter, the Applicant engaged the services of an estate agent

to look for a buyer but due to lack of cooperation from the
Respondent, up till October 2020, the said Apartment could not
be sold. The monthly instalments were not serviced and this
caused the Applicant concern.

[8] The Applicant then took out an application for the enforcement
of the Decree Nisi. This application was served by way of A.R
Registered which was acknowledged by the Respondent. He did
not defend the application which was heard before Abdul Wahab
Bin Mohamad J on 14 April 2021 where His Lordship allowed
the application and ordered inter alia that:

i) the said Apartment be sold premised upon its market value

as valued by the registered valuer appointed by the
Applicant and after settling the amount owing to the bank,
the amount paid by the Applicant to the sum of
RM40,194.83 together with legal fees and expenses for the
sale and purchase as well as transfer transaction, any net
profit was to be divided equally between both the
Applicant and the Respondent;

ii) in the event the Respondent fail to execute any documents

in favour of any interested buyer the Deputy Registrar of
the High Court at Ipoh is empowered to do so with the
Land Office or any other party with authority to give effect
to the transaction;

iii) the Applicant is at liberty to apply and to obtain a

redemption statement from Hong Leong Bank Berhad (the
chargee) and upon settling the redemption amount, this

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bank is to return the original issued document of title to

the said Apartment, discharge of charge form duly
executed and any documents required for the discharge of
the charge on the said Apartment;

iv) the Applicant is at liberty to apply for a loan to purchase

the half undivided share of the Respondent in the said
Apartment based upon the price as valued by the registered
valuer and the Deputy Registrar is empowered to execute
such documents as may be necessary.

[9] A copy of the Order of 14 April 2021 was caused to be posted to

the Respondent by A.R Registered Post together with a request
to the Respondent to make an appointment with the solicitors for
the Applicant to execute all necessary documents.

[10] The Applicant then engaged another registered valuer, this time
around from KGV International Property Consultants who
valued the said Apartment at RM380,000.00 and had also
engaged an estate agent from Oriental Real Estate Sdn. Bhd. to
look for a buyer to buy the said Apartment at RM380,000.00
within a month but this proved to be unsuccessful.

[11] The Applicant then proceeded to apply and succeeded in

obtaining a loan from Public Bank Berhad which she accepted
on 8 August 2021 to purchase the Respondent’s half share in the
said Apartment.

[12] Her purchase was completed with the entire said Apartment
registered in her name on 4 January 2022.

[13] By way of a letter dated 13 January 2022 and posted by way of

A.R. Registered Post, the Applicant through her solicitors
informed the Respondent that the transfer to her name has been
completed and sought for the Respondent to deliver vacant

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possession of the said Apartment to her. The Respondent did

not.

Ex parte Originating Summons (Enclosure 1)

[14] The Applicant commenced this action by way of an Originating

Summons pursuant to Order 45 rule 3 Rules of Court 2012
seeking the following reliefs against the Respondent:

i. a Writ of Possession be issued for possession of the said

Apartment together with payment of what is described as
arrears of RM40,194.83;

ii. payment of all legal fees and expenses incurred by the

Applicant in the sale and purchase of the said Apartment;

iii. all interest accruing on the loan from the Bank which the
Respondent has defaulted in servicing and all costs
incurred by the Applicant to secure the discharge of the
charge favouring the Bank and which is to be deducted
from the sale of the said Apartment;

iv. a Writ of Possession be issued in Form 87A pursuant to

Order 45 rule 12 Rules of Court 2012 and to be enforced
against the Respondent with the Court’s Bailiff being
authorised to enter the premises with such force as may be
necessary to secure possession;

v. costs of RM5,000.00;

vi. such further or other relief as may be deemed fit by this

Honourable Court.

[15] The reliefs sought is supported by the facts narrated above in the
form of an Affidavit affirmed by the Applicant on 16 February
2022 (Enclosure 2).

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[16] When the ex parte Originating Summons first came before me

on 12 May 2022, acting pursuant to Order 45 rule 3 (3) Rules
of Court 2012 (“ROC”) which is reproduced hereunder, I
directed the counsel who appeared for the Applicant to give
notice of the proceedings to every person in actual possession of
the said Apartment.

“Order 45 r. 3 (3) ROC

Such leave shall not be granted unless it is shown that every

person in actual possession of the whole or any part of the
immovable property has received such notice of the proceedings
as appears to the Court sufficient to enable him to apply to the
Court for any relief to which he may be entitled. ”

[17] The hearing of the application (Enclosure 1) was then adjourned

to 9 June 2022 with a further direction given by this Court that
an affidavit verifying service of notice of the proceedings for
possession has to be filed.

Resumed Hearing

[18] At the resumed hearing on 9 June 2022, the Court was appraised
by learned counsel for the Applicant that service of notice of the
proceedings had been sent to the solicitors for the Respondent,
M/s Amir & Lee, under cover of a letter dated 13 May 2022. An
affidavit of service to this effect was filed (Enclosure 7).

[19] The Respondent was represented by learned counsel, Mr. Ivan

Tan Kit Wei.

[20] Written submissions had been filed by both the learned counsel
for the Applicant (Enclosure 5) and for the Respondent
(Enclosure 8).

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Respondent’s Position

[21] Learned counsel for the Respondent in his written submissions

raised two issues. The first issue is that the wrong mode for
leave to commence an application for possession had been
adopted. The second issue is that the Applicant has failed to
specify the alleged amount due by way of legal fees, costs,
expenses and interest claimed.

Sole Issue

[22] As it turned out, at the inception of the resumed hearing, the

learned counsel for the Applicant informed the Court that the
Applicant is not pursuing her two prayers for payment of an
alleged amount due by way of legal fees, costs, expenses and
interest claimed and was content to rely upon the terms of the
Decree Nisi for purposes of enforcement, if necessary, these
reliefs. By reason thereto, the second issue raised by the
Respondent on lack of particulars on the amounts claimed
became a non-issue.

[23] Thus, the sole issue for the determination of the Court was
whether the Applicant had adopted the wrong mode of
application, and if so, whether it is fatal.

Court’s Analysis and Findings

[24] On the sole issue, the Respondent asserted that the Applicant
ought to have taken out a Notice of Application pursuant to
Order 46 r. 3 (1) ROC under the Divorce Petition proceedings
ie, the Applicant cannot commence a fresh action.

[25] Order 46 r. 1 ROC provides that a writ of execution includes a

writ of possession which is used to enforce a judgment giving

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possession of immovable property with the writ to be in Form

87, see Malaysian Rules of Court 2012 An Annotation
Volume 1 p 857 46/1/5.

[26] Order 46 rule 2, which was not referred to by learned counsel

for the Respondent, sets out the circumstances when leave to
issue any writ of execution is necessary. 5 circumstances are
specifically provided under Order 46 rule 2 (1) which are
reproduced here:

“(1) A writ of execution to enforce a judgment or

order may not be issued without the leave of the Court in
the following cases:

(a) where six years or more have lapsed since the

date of the judgment or order;

(b) where any change has taken place, whether by

death or otherwise, in the parties entitled or liable to
execution under the judgment or order;

(c) where the judgment or order is against the

assets of a deceased person coming to the hand of his
executors or administrators after the date of the judgment
or order, and it is sought to issue execution against such
assets;

(d) where under the judgment or order any person

is entitled to relief subject to the fulfilment of any
condition which it is alleged has been fulfilled; and

(e) where any movable property sought to be seized

under a writ of execution is in the hands of a receiver
appointed by the Court.

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[27] If leave is required, before such a writ can be obtained, leave

has to be applied for ex parte by a notice of application in Form
88, see Order 46 r. 3 (1) ROC.

[28] Save for any written law or rule which requires a person to
obtain leave of the Court for the issue of execution (see Order
46 rule 2 (2)), it is clearly set out in Order 46 rule 2 that it is
only in those five (5) circumstances that there is a need for leave
to be obtained.

[29] Learned counsel for the Respondent, in his written submissions,

asserted that the Applicant had adopted the wrong mode of
applying for a Writ of Possession on the premise that an
application for leave to issue a writ [of possession] shall be
made by way of a Notice of Application in Form 88. He is thus
asserting the Applicant must first apply for leave.

[30] He laid emphasis on the use of the word “shall”. With respect,
this is akin to jumping the gun because nowhere in his written
submissions (Enclosure 8) nor during his oral submissions
presented on 9 June 2022, did he show that at least one of the
circumstances prescribed by Order 46 r. 2 (1) (a) to (e) was
applicable to the Applicant as to require her to seek leave in the
first place. With such an omission, his objection has failed to
pass muster and is nothing but a red herring.

[31] Learned counsel for the Respondent admitted that his client, the
Respondent is still in occupation of the said Apartment.

[32] It is indisputable that the Respondent is very much aware of the

terms of the Decree Nisi. However, he has chosen to ignore the
same by failing the comply with the terms thereof. Instead, what
he has raised about the need to comply with Order 46 r. 3(1)
(ROC) is highly technical, and with respect, inapplicable in the
circumstances of this case.

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[33] Reliance upon the authority of Magendiran Muthusamy v.

Punitha Jayacelam [2021] 1 LNS 2129 (HC) by the Respondent
is misplaced. This authority in fact supports the Applicant as
Muniandy Kannyappan JC (now J) was not impressed with the
Respondent’s technical objection that service of notice of
proceedings was done by only leaving the notice at a
conspicuous part of the house when the Respondent was a party
to the Decree Nisi and the person in the house had refused to
accept service.

[34] In any event, Order 1A ROC expressly provides that in

administering these Rules, the Court or a Judge shall have
regard to the overriding interest of justice and not only to the
technical non-compliance with these Rules. Added to this, I
would also place reliance upon Order 2 r. 1(1) and Order 2 r.
3 which speaks for themselves and I reproduce the same
hereunder:

Non-compliance with Rules (O. 2 r. 1)

(1) Where, in beginning or purporting to begin any

proceedings or at any stage in the course of or in
connection with any proceedings, there has, by
reason of any thing done or left undone, been non -
compliance with the requirement of these Rules, the
non-compliance shall be treated as an irregularity
and shall not nullify the proceedings, any step taken
in the proceedings, or any document, judgment or
order therein.

3. Preliminary objection for non-compliance of rules

not allowed (O. 2 r. 3)

A Court or Judge shall not allow any preliminary

objection by any party to any cause or matter or

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proceedings only on the ground of non-compliance of any

provision of these Rules unless the Court or Judge is of
the opinion that such non- compliance has occasioned a
substantial miscarriage of justice or occasioned prejudice
that cannot be cured either by amendment or an
appropriate order for costs or both.

[35] In Damai Jaya Realty Sdn Bhd v. Pendaftar Hakmilik Tanah,

Selangor [2015] 1 LNS 7; [2015] 2 MLJ 768 the Court of
Appeal held that:

“Justice, equity and good conscience must be a starting and

ending point to be considered in all decision making process
and it is always subject to rule of law, and where the law is
silent, the courts are obliged to deliver judgment according to
justice, equity and good conscience, and at all times act within
the framework of the rule of law and the Federal Constitution to
preserve the integrity of the decision making process ”

[36] Under the Decree Nisi, the Respondent was to take various steps
to save the Applicant harmless from the loan taken from the
Bank and in default, the said Apartment was to be sold and the
proceeds to be distributed subject to any lawful deductions.

[37] Although the Decree Nisi did not expressly set out that vacant
possession was to be surrendered if the said Apartment was to
be sold, in my considered view, it is so obvious that vacant
possession would have to be surrendered to whoever purchases
the Apartment, including the Respondent, if he had bought over
the share of the Applicant, that the term for the need to
surrender vacant possession must be necessarily implied into the
Decree Nisi.

[38] The Respondent failed to take the steps he was ordered to do

under the Decree Nisi.

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[39] Instead, the Applicant had to take steps to have the said
Apartment disposed pursuant to the Decree Nisi with her ending
up taking a loan to buy it. Along with her purchase is the right
to possession.

[40] Hence, in my considered opinion, the Applicant’s reliance upon

the provisions of Order 45 r. 3 (1) for purposes of the
enforcement of a judgment or order for the giving of possession
is proper and such a construction would be in accord with
justice, equity and good conscience in the circumstances of this
case.

[41] The Respondent was given notice that he could claim for any
relief which he is entitled to for purposes of resisting the relief
for possession prayed by the Applicant. He did not make any
claim. Instead, he was merely content to raise technical
objections on the mode of proceedings.

[42] With the Respondent having failed to comply with his

obligations under the Decree Nisi of 13 August 2018 and having
not raised any claim on why possession of the said Apartment
ought not to be surrendered to the Applicant, this Court granted
an order a Writ of Possession be issued in Form 87A pursuant to
Order 45 rule 12 Rules of Court 2012 and to be enforced
against the Respondent with the Court’s Bailiff being authorised
to enter the premises with such force as may be necessary to
secure possession with costs of RM5,000 subject to allocatur to
be paid by the Respondent.

Conclusion

[43] Order accordingly.

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Dated: 18 JULY 2022

(SU TIANG JOO)

Judicial Commissioner
High Court in Malaya
Ipoh, Perak

COUNSEL:

For the applicant - Chia Song Ming & Chia Wai Chee; M/s Chia
Kay Joo & Co

For the respondent - Ivan Tan Kit Wei; M/s Amir & Lee

Case(s) referred to:

Magendiran Muthusamy v. Punitha Jayacelam [2021] 1 LNS 2129

(HC)

Damai Jaya Realty Sdn Bhd v. Pendaftar Hakmilik Tanah, Selangor

[2015] 1 LNS 7; [2015] 2 MLJ 768

Legislation referred to:

Rules of Court 2012, O. 1A, O. 2 rr. 1(1), 3O. 45 rr. 3 (1)(3), 12, O.
46 rr. 2(1)(a)(b)(c)(d)(e) (2), 2(2), 3 (1)

[Notice: This Grounds of Judgment is subject to official editorial

revision]

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